The opinion
Hoke, J.,
after stating the case: Plaintiff excepted to the charge of the court on the issue as to damages, the objection being that it fixes an improper valuation of plaintiff’s property as a basis for estimating the damages suffered. We are of opinion that the position is well taken. On the facts in evidence, it appears that the plant of defendant company was erected and carried on for five or six years without damage done or threatened to plaintiff’s property, and that the injury arose by reason of an enlargement of the operations, including the construction and maintenance of certain chambers or tanks for the manufacture of sulphuric acid about one year before action commenced. This is the time the wrong was committed, and plaintiff is clearly entitled to h^ive the value of his property considered as of that date, whether its value was owing to the existence of the plant or otherwise. It was not open to defendant to invoke and use the benefits arising by reason of a former and rightful operation of its plant as a protection for the subsequent wrong. Kimel v. Kimel, 49 N. C., 121 ; Giles v. Stevens, 79 Mass., 146 ; Talbot v. Whipple, 73 Mass., 122 . The portion of his Honor’s charge above excepted to in effect withdrew from the jury, as a basis of estimate, any and all enhancement of value on plaintiff’s property by reason of the existence of defendant’s plant either before or after the injury, and is prejudicial error, entitling plantiff to a new trial of the issue. Taking, then, the value indicated as a proper basis and in reference to the enlargement of the plant, including the addition of the acid tanks, etc., from which the injury resulted, when an action is brought for recurring damages, by reason of a nuisance in the operation of a manufacturing plant, causing injury to an adjoining or neighboring proprietor, the general rule is that incidental benefits or enhancement of value by reason of such plant or its enlargement, etc., may not be consid *87 ered in diminution of damages. Francis v. Schoellkoff, 53 N. Y., 152 ; Duck Town Sulphur Co. v. Baries, 60 S. W., 593 (Term Chancery) ; 2 Wood on Nuisances (3d Ed.), sec. 877. But where, as in this case, the parties elect to'treat the action as one for permanent damages, the suit then amounts to the partial taking of another’s property, and it becomes in effect proceedings to condemn on the complainant’s land an easement to operate the plant for all time in the specified way, and the damages are awarded very much on the principles which obtain in proceedings of that character, the true measure being the difference in value of the property with and without the existence of the wrong, diminished by the incidental benefits especial and peculiar to the property by reason of the plant as enlarged and conducted, but not by any benefits which are common to property of like kind and similarly situated in that immediate neighborhood. R. R. v. Platt Land, 133 N. C., 266 ; R. R. v. Esterlee, 76 Ky., pp. 667-677; Sutherland on Damages, sec. 1056; 21 A. and E. (2d Ed.), Title, Nuisances, p. 730. The general position is very well stated in the last citation, as follows : “The general rule is that the incidental benefits accruing to plaintiff cannot be set off against the damages resulting from the nuisance, as the plaintiff cannot be required to accept indemnity in any manner other than that provided by law; but, when a nuisance operates as a partial taking of the plaintiff’s property, any resulting benefit peculiar to him may be considered in mitigation of damages.”
For the error indicated, plaintiff is entitled to a new trial on the issue as to damages, and it is so ordered.
New trial.